Here, within the USA’s own jurisdiction, Khalid Sheikh Mohammed and his co-defendants have been held without trial for up to seven and a half years. The US administration is considering prosecuting them before military tribunals lacking the procedural guarantees of fairness applicable in the civilian justice system, even despite the fact that it has previously acknowledged that the federal courts are available and capable of handling the cases.
With the question of double standards in mind, one might recall a once-secret memorandum written in the US Justice Department in 2005 – giving the green light to torture or other ill-treatment against detainees, such as these five men, held in secret US custody:
“Each year, in the State Department’s Country Reports on Human Rights Practices, the United States condemns coercive interrogation techniques and other practices employed by other countries. Certain of the techniques the United States has condemned appear to bear some resemblance to some of the CIA interrogation techniques… nudity, water dousing, sleep deprivation, and food deprivation… We recognize that as a matter of diplomacy, the United States may for various reasons in various circumstances call another nation to account for practices that may in some respects resemble conduct in which the United States might in some circumstances engage, covertly or otherwise”.19
A clear break from the past must mean an end to such double standards. It must mean an end to military commission trials. Indeed, along with the question of whether the USA can be persuaded to abandon indefinite detention without charge or criminal trial of terrorism suspects in what it considers a global “war” against al-Qa’idaand associated groups, the decision as to which forum will be chosen for trials in this context will be a defining moment in the USA’s post-9/11 history. A decision to use military commissions rather than the readily-available civilian courts will symbolize continuity with the assault on international human rights standards that began under the administration of President George W. Bush; turning to the time-tested ordinary courts will represent a real break from the double standards of the past and a positive step towards living up to the USA’s international legal obligations and to the Human Rights Commitments and Pledges this administration made in April 2009.
Amnesty International has long called for any Guantánamo detainee whom the USA intends to prosecute to be promptly charged and brought to fair criminal trial in an independent and impartial tribunal applying fair trial standards. Any detainee the USA does not intend to prosecute should be immediately released. Any plan to close the Guantánamo detention facility must ensure that closure does not come at the expense of full respect for human rights. Turning back to military commission trials, where justice will neither be done nor seen to be done, would be a huge step backwards – that is to say, in exactly the wrong direction.
1 Available at http://www.state.gov/documents/organization/122476.pdf